, LLC, 905 F.3d 835, 845 n.54 (5th Cir. 2018) (noting "courts prudently decline to review adverse interlocutory rulings because the matter under review is the dismissal itself" and limiting review to order dismissing under Rule 41(b) for failure to prosecute, not interlocutory order compelling arbitration); Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 366 (6th Cir. 1999) (declining to review interlocutory orders where dismissal for failure to prosecute was not an abuse of discretion); John's Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 105 (1st Cir. 1998) (holding "review of the merits" of interlocutory orders "is beyond the scope of this appeal" because "interlocutory rulings do not merge into a judgment of dismissal for failure to prosecute"); Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) ("dismissal without prejudice because of failure to prosecute is not to be employed as an avenue for reaching issues which are not subject to interlocutory appeal as of right"); Bowe v. First of Denver Mortg. Invs., 613 F.2d 798, 802 (10th Cir. 1980) (concluding court lacked "authority to review" order denying class certification after dismissal for failure to prosecute); see also Microsoft, 137 S. Ct. at 1713 (recognizing an exception to the merger doctrine when a party voluntarily dismisses its case under Rule 41(a) to obtain appellate review of an interlocutory order because "voluntary-dismissal tactic[s]" invite "protracted litigation and piecemeal appeals" and explaining that if interlocutory orders merged with the dismissal, a plaintiff "need only dismiss her claims" to trigger an appeal of right, potentially allowing the plaintiff to "stop[ ] and start[ ] the district court proceedings with repeated interlocutory appeals").
The suggestion to the contrary is dicta in McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (holding interlocutory order merged into final judgment). Bowe v. First of Denver Mortgage Investors, 613 F.2d 798 (10th Cir. 1980), does not articulate a generally applicable rule nor an exception to the merger rule; in the context of class actions, it appears sui generis. Applying the prudential rule, this court declines to review the interlocutory, partial summary judgment.
However, six circuit courts of appeals have recognized an exception to the rule, holding that interlocutory rulings do not merge into a judgment of dismissal for failure to prosecute, and are therefore unappealable. See, e.g., Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974) (interlocutory rulings did not merge with judgment of dismissal with prejudice for failure to prosecute); Hughley v. Eaton Corp., 572 F.2d 556, 557 (6th Cir. 1978) (same); DuBose v. Minnesota, 893 F.2d 169, 171 (8th Cir. 1990) (same); Huey v. Teledyne, Inc., 608 F.2d 1234, 1239 (9th Cir. 1979) (same); Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) (same, but dismissal without prejudice); cf. Sere v. Board of Trustees of the Univ. of Illinois, 852 F.2d 285, 288 (7th Cir. 1988) (Rule 37(b) dismissal with prejudice for failure to complete discovery and to attend a deposition); Bowe v. First of Denver Mortgage Investors, 613 F.2d 798, 800-801 (10th Cir. 1980) (commenting favorably on holding in Huey). But see Drake v. Southwestern Bell Tel. Co., 553 F.2d 1185, 1187 (8th Cir. 1977) (on appeal from dismissal without prejudice for failure to prosecute, court would review interlocutory orders in the interest of efficient judicial administration where orders effectively deprived plaintiff of meaningful relief).
. . ." Id. at 1240; accord Bowe v. First of Denver Mortgage Investors, 613 F.2d 798 (10th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 855 (1980); cf. Sere v. Board of Trustees, 852 F.2d 285, 288 (7th Cir. 1988) (interlocutory order does not merge into final judgment where merger would reward party for bad faith and dilatory tactics). By contrast, in Allied Air Freight, Inc. v. Pan American World Airways, Inc., 393 F.2d 441 (2d Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968), the district court had stayed an action until the plaintiff exhausted its administrative remedies.
In support of their challenge to appealability, appellees cite two post- Livesay cases from other circuits holding that when a named plaintiff induces a dismissal of his complaint by failing to prosecute, after the denial of class certification, such denial is unreviewable on appeal from the final judgment of dismissal. Bowe v. First of Denver Mortgage Investors, 613 F.2d 798, 801-02 (10th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 855 (1980); Huey v. Teledyne, Inc., 608 F.2d 1234, 1240 (9th Cir. 1979). We conclude that appellees' reliance on these cases is misplaced.
Id. at 1239, 1240. See also Bowe v. First of Denver Mortgage Investors, 613 F.2d 798, 800-02 (10th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 855 (1980). In the most recent case, Marks v. San Francisco Real Estate Board, 627 F.2d 947 (9th Cir. 1980), plaintiffs-appellants' class action was first certified, then decertified and ultimately dismissed.